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3d 152
I.
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II.
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Dobbs also asserts on appeal that the district court's perjury finding was
insufficient under Dunnigan to support a sentence enhancement.4 He maintains
that his testimony was generally consistent with that of other witnesses. The
"only inconsistency," he contends, was that portion of his testimony denying
that he and witness Bulger defrauded Union Camp--the very behavior for
which Dobbs was found guilty. Dobbs asserts that the district court must make
a specific finding regarding what portions of his testimony were perjurious, in
order to enhance his sentence. We disagree. While specific findings are
preferred, they are not required in these circumstances.
In upholding application of the Sec. 3C1.1 enhancement for perjury, the Court
in Dunnigan expressed a preference that a sentencing court applying the
enhancement "address each element of the alleged perjury in a separate and
clear finding." Id. at ----, 113 S.Ct. at 1117. Application of the enhancement is
permitted, however, if the sentencing court "makes a finding of an obstruction
or impediment of justice that encompasses all of the factual predicates for a
finding of perjury." Id. When sentencing Dunnigan, the sentencing court found
"that the defendant was untruthful at trial with respect to material matters in this
case. [B]y virtue of her failure to give truthful testimony on material matters
that were designed to substantially affect the outcome of the case, the court
concludes that the false testimony at trial warrants an upward adjustment...." Id.
The Supreme Court held that this general finding by the sentencing court, while
not the preferred recitation of specific instances of perjured testimony, was
sufficient to support use of the Sec. 3C1.1 enhancement because the record
amply demonstrated that Dunnigan's testimony was materially false. Id.
5
At Dunnigan's trial, five witnesses testified that the defendant was involved in
cocaine trafficking and provided specific details about cocaine transactions
involving her. Id. at ----, 113 S.Ct. at 1114. Dunnigan then took the stand,
denied all involvement in any drug-related activities, and offered innocent
explanations for trips she made that the witnesses testified were made in order
to purchase cocaine. Id. In rebuttal, the government presented an additional
witness who directly contradicted Dunnigan's testimony that she had not taken
part in any cocaine transactions. Id. Against this background, the Supreme
Court upheld the sentence enhancement for attempting to obstruct justice
through perjury. Id. at ----, 113 S.Ct. at 1119.
In this case, Bulger, a truck scale operator for Union Camp, testified that
Dobbs, a wood broker, suggested a scheme in which Bulger would falsify truck
weights for non-existent lumber deliveries and Dobbs would present fraudulent
delivery tickets to Union Camp for payment. Bulger testified that he prepared
the false tickets while Dobbs collected the money from Union Camp and split
the money with Bulger. Dobbs then testified in contrast that he knew of no
scheme to defraud Union Camp by presenting fraudulent delivery tickets for
payment and had never suggested one to Bulger. He testified that, although he
paid his other accounts by check, he paid Bulger tens of thousands of dollars in
cash, not because he and Bulger were engaged in any illegal activity, but for
legitimate business reasons.
his behavior.
8
Dobbs argues that the judge's comment on the jury's belief indicates that the
obstruction enhancement was applied simply because Dobbs testified and was
found guilty, not because the judge independently determined that Dobbs
committed perjury at trial. Taken in context, however, we conclude that this
comment refutes counsel's assertion that the jury verdict did not necessarily
indicate a belief in Bulger's testimony. It does not indicate that the Sec. 3C1.1
enhancement was applied merely because Dobbs testified and was found guilty.
The judge specifically accepted Bulger's testimony that Dobbs originated the
scheme and then found that Dobbs' testimony to the contrary was perjurious.
III.
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AFFIRMED.
Perjury, for the purpose of applying Sec. 3C1.1, is defined as "giv[ing] false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake or faulty memory."
Dunnigan, --- U.S. at ----, 113 S.Ct. at 1116
Our review of the sentencing hearing record indicates that defense counsel did
not directly object to a lack of specific findings of perjury, making it a close
question whether this issue was preserved for appeal. Instead, counsel and the
court engaged in an abbreviated colloquy about the constitutionality of the
enhancement as applied to a defendant who testifies at trial, a point well settled
by Dunnigan. We have, however, broadly construed counsel's constitutional
objection to include the degree of specific findings of perjury required by
Dunnigan, and we address that point as if it had been properly preserved